Originally Posted by
Boggie Dog
I'm not questioning your knowledge but am not familiar with that passage. Since the constitution lays out what federal government can do it should be no problem to cite that clause.
Clarification: The Bill of Rights, which is what is implicated by this discussion, does not lay out what the government can do, but rather, what it can't. It is a non-exclusive list of powers that are forbidden to the government. When the government exercises powers denied to it, it is acting as a tyrant; the Bill of Rights is insurance against tyranny.
The issue here isn't whether the woman who overstayed her visa should be able to stay in the US regardless. Obviously, she shouldn't. The issue is whether the government can demand, in a coercive context and without a reasonable suspicion, much less probable cause, proof that someone hasn't committed a crime. LEOs are free to ask whatever they want. In "identify states," if you are asked by a LEO who you are, you have to tell them. And that's all. No one is under any legal obligation to answer any LEO's questions. When I'm stopped by a traffic cop, I
never respond to the question, "Do you know how fast you were going?" (and no one else should, either). I'm not up on the latest court rulings on inland immigration checkpoints. There's one I pass quite frequently on the 405 between San Diego and Los Angeles. I've never been stopped -- when I drive up, they say, "Good afternoon," and wave me through as soon as they see I'm a white male in a suit. However, if they did stop me and ask, "Are you a US citizen?" my only response would be, "Am I being detained?"
The prohibitions on the government exercise of power in the Bill of Rights are not absolute and, over the past 2 centuries or so, the courts have construed these amendment to allow certain limited exceptions. These exceptions are grudgingly granted and subject to specific factual tests. For example, the 4th Amendment has been construed to allow "administrative searches" under certain conditions and certain restrictions in the absence of probable cause or a warrant. TSA is a living embodiment of the "administrative search" exception. I am aware, however, of no exception to the 4th Amendment that requires anyone to prove they have not committed the crime of illegal presence in the US or face arrest. Are you?